Historical Background

The territories composing modern Belgium emerged in the Middle Ages
under the rule of autonomous lords (count of Flanders, duke of Brabant,
count of Hainaut, count of Namur, duke of Limburg, bishop of Liege, etc)
some of whom were French vassals (Flanders), some vassals of the Emperor
(Liege), and some of whom were already deemed without superior lord
(Brabant). These
territories, by a succession of marriages and inheritances, belonged to
the Capetian dukes of Burgundy until 1477 and then passed to the Habsburgs.
Charles V divided his inheritance in 1555 and gave the Low Countries to
his son Philip II, king of Spain. The Low Countries revolted against
Spanish rule in the late 1560s. The northern provinces of the union
of Utrecht of 1579, mostly Protestant, more persevering and successful,
saw their independence recognized at the treaty of Westphalia in
1648. The southern provinces of the union of Arras of 1579, mostly Catholic,
remained under Spanish rule and, in 1713, passed under Austrian rule.

In 1598, Philip II granted the Low Countries to his daughter the
Infanta Isabel, on condition that she marry her cousin archduke Albert
of Austria. The Low Countries were to be inherited by their
issue, by mixed primogeniture. Any female successor was obliged
to marry the king of Spain or the person whom the king of Spain would
choose. The marriages of the children of the ruler were to
be approved by the king of Spain. In case of extinction of the
issue of the marriage the Low Countries reverted to Spain. If
Albert died before Isabel without children she would cease to rule; if
she died before him without children he would remain as governor in the
name of the king of Spain.

Revolted against Austria in 1789, conquered in 1793 and annexed in 1795
by France, these provinces became part of the kingdom of the Netherlands
created by the
congress of Vienna in 1815. A revolt in August 1830
against the autocratic rule of king William I turned into secession on
October 4, 1830, recognized by the foreign powers in November 1830 and
by the Netherlands only in 1839; Belgium was born.

A national congress convened in November 1830 drafted and promulgated
a constitution on February 7, 1831. A few days earlier, on Feb. 4,
an election had taken place in the congress for a new sovereign. The
first round of voting produced
The archduke had been governor of the Autrian Low Countries.

None having obtained a majority, a second ballot produced:

Duke of Nemours (younger son of king Louis-Philippe)

89

Auguste, Duke of Leuchtenberg (son of Prince Eug\350ne):

67

Archduke Charles of Austria, duke of Teschen:

35

Duc de Nemours:

97

Duke of Leuchtenberg:

74

Archduke Charles:

21

The king of the French declined for the duke of Nemours under British pressure
on Feb. 17 (
see a depiction of the event).
The congress chose a regent, baron Surlet de Chokler, and voted again on June 4,
with the main candidate being Leopold Georg Christian Frederic of Saxe-Cobourg-Gotha
(1790-1865), former son-in-law of George IV of Great Britain, who would have become
king-consort had his wife not died in 1817, and who the year before had
turned down the Greek crown. The results were:

For declaring the Prince of Saxe-Coburg king:

152

Against his election:

10

For declaring the Regent king:

14

Abstaining:

19

null:

1

Leopold arrived on Belgian soil at the beach of De
Panne on July 27, 1831. He took the constitutional oath on July
21, 1831 (Belgium's national holiday).

The constitution was revised several times: in 1888, 1893, 1899, 1921,
1970, 1988, and 1991. A major revision of 1993 redefined Belgium
as a Federal state.

Leopold I was succeeded

by his son Leopold II (1835-1909) who married on 22 Aug 1853 Maria-Henrietta
of Habsburg;

The reign of Leopold III

When Germany invaded Belgium in 1940, Leopold III stayed as commander-in-chief
and signed the surrender on 28 May. That same day,
the Belgian government, installed in
France, implicitly repudiated the king's decisions by declaring the king unable to reign
(dans l'impossibilité de régner),
and assumed his powers in the name of the Belgian people (Foreign and State
Papers, 144:226):

Leopold III remained in Laeken most of the war, but spent June 1944
to May 1945 imprisoned in Germany and Austria. When the Belgian government
returned from London, the houses of parliament were summoned.
On 20 September 1944, they applied article 82 of the Constitution, declared
the king to be unable to reign due to the enemy, and established a regency
under Leopold's
only brother Charles, count of Flanders (1903-83). Freed on 7 May 1945, the
king went to Switzerland to await the resolution of "the royal question":
should his war-time conduct prevent him from returning to the throne.

The situation was awkward from a legal point of view, because the reason for
the regency had come to an end (since the king was no longer under enemy
power), yet the Constitution had no mechanism for putting an end to a regency.
The constitutional gap was filled by law of
19 July 1945, according to which, after an application of article 82,
a joint meeting of both houses was required to recognize that the
"impossibility of reigning" had ended. Years of wrangling followed.
Leopold's wartime conduct, not only his surrender in May 1940, but his
later refusals to work with the government in exile, and his attitude
toward the German occupants, were the subject of bitter debate. Finally,
a national referendum in March 1950 decided for the return of the king. The regent
called a meeting of the houses of Parliament on July 4, and on 20
July 1950 they declared that Leopold III's inability to reign
had come to an end. Two days later, Leopold III returned to Belgium.

But the referendum had revealed a rift along linguistic
and political lines.
Riots broke out in Flanders. The king declared on August 1 his wish
to appoint his son Baudouin as lieutenant-general, and a law was passed
to that effect on 10 August 1950, devolving "the exercise of the king's
constitutional powers" to "the heir presumptive, who shall be titled
Prince royal." Then, on July 16, 1951,
Leopold III solemnly "put an end to his reign and permanently renounced the
exercise of his constitutional powers."
He stayed at Laeken with his wife until 1969.

It was during the wartime period, in 1941, that Leopold III, a widower since
1934, remarried with Lilian Baels (daughter of the governor of Western
Flanders from 1933 to 1940). He married religiously first, thus
violating article 16 of the Constitution (currently
article 21)
which requires that the religious marriage take place after the civil
marriage (it does not follow, however, that the marriage is void for that
reason alone). In his recent biography of Leopold III, however, Antoine
Giscard d'Estaing doubts that the religious marriage took place on any other
day but December 6: in his opinion, the announcement by cardinal van Roey
that the religious marriage had taken place on 11 September was "a pious
lie" to cover the pregnancy in progress of Lilian Baels (she delivered
in July). The first deputy burgmeister of Brussels witnessed the civil
ceremony in Laeken.

Interestingly, the announcement was made to the country by the means of
a letter of cardinal Van Roey, primate of Belgium, to all parish priests.
The letter stated that Lilian Baels had expressly asked not to be titled
queen; that the king had titled her princesse de Réthy, and had
also declared that the issue of this marriage would have no dynastic
rights. The Belgian government in exile noted that the dynastic
renunciations were of dubious validity. No one seems to have considered
them to have any legal value. They place, however, this second marriage
in the tradition of German morganatic remarriages of sovereigns (such as
that of Friedrich-Wilhelm III of Prussia).

Leopold III had by Liliane Baels three children (a son and two daughters).
The son's birth was announced officially, and the First President of the Court
of Cassation (Belgium's highest judicial court) signed the declaration of birth.

The question of the validity of Leopold III's second marriage,
and of the dynastic status of the children, is examined further.

The succession law was laid down in 1831 as part of the Constitution, of which
it now forms article 85. It made the Belgian throne
(more exactly, "the King's constitutional powers") hereditary in the direct,
male, legitimate issue of the body of Leopold I, by order of primogeniture.

It was modified only twice:

on September 7 1893, the second and third sections of
article 85
requiring royal consent for the marriages of princes were added; by virtue
of article 106, such consent must be countersigned by a minister;

in 1991, the succession was changed from male primogeniture to undifferenced
primogeniture, with the old provision remaining in effect up to and including
the succession to the present king (transitory disposition).

The original constitution of 1831 had no such requirement, although Leopold I
established house laws that contained one, as did most German house laws at
the time. During the National Congress, in which the constitution was drafted,
an article was proposed by the central section of the Congress, stating:
"The king cannot marry without the assent
of the Houses; in the absence of such assent, his issue by thast marriage cannot
succeed to the throne. The members of the royal family, in line to succeed
to the throne, cannot marry without the authorization of the legislative
power. Marriage of a member without such authorization results in the loss
of all rights to the throne for the member who entered into the marriage as
well as for his descendants." But the article was rejected on a motion
by the very committee that had submitted it (Pasinomie belge,
1831, p. 192).

The present text was introduced by amendment on Sept. 7, 1893. It makes royal consent a condition
for marriages of princes, and deprives those who contravene of their rights
to the throne. The article does not explicitly say that the issue
of such unauthorized marriages are also excluded.

The consent is granted by the king: it is a constitutional power (by
article 105) hence subject to the requirement of
article 106 that it be countersigned by a minister who thereby becomes
responsible. This gives the legislature, to whom ministers are
responsible,
an indirect control over princely marriages.

Is any consent required for the king's own marriage? Three kings
married: Leopold I in 1832, Léopold III in 1941, and Baudouin I in 1960.
The first took place before the 1893 amendment, the second took place under
circumstances discussed below; as for the third, I do not believe that formal consent
was given by the king to himself.
Article
85 requires consent only for marriages of princes: the king is not
a prince, he is the king. In fact, when the 1893 amendment was discussed
in Parliament, a representative asked the government minister what was
intended to apply to the king, and the minister replied jokingly: "the
king cannot ask of himself his own consent."

The article rejected in 1830, and the jocular reply of the government
minister in 1893, prove that the issue of control over the king's
marriages was explicitly brought up in the
course of drafting the constitution and its amendments. Therefore, if the
constitution is silent on this point, it is by design, not oversight. One cannot
reintroduce into the document a clause that its drafters explicitly rejected.
No consent is required for the king's own marriage.

Several authorities can be cited in support of this thesis:

Paul Errera (Das Staatsrecht des Königsreichs Belgien,
Tübingen 1909, p. 41) states that the clause does not apply to the
king or to princesses;

Victor Boon (Het Belgisch Staatsrecht, Ghent 1948, pp. 208-10)
notes that the constitution does not require the king's consent to his
own marriage, and explains that this omission is voluntary (see the
passage);

François Perin (Cours de droit constitutionnel,
Liège, 1986; vol. 1, p. 144) holds Leopold III's second marriage
to be valid and Alexandre to be a full dynast;

We thus have four constitutional scholars, writing before
and after the Leopold III crisis, who are of the same opinion; and one
who takes no stand, but presents both positions as arguable.
The same opinion, that the marriage was fully valid,
was also expressed by representative
Van Remoortel in the debates of July 1950 over the end of the regency
(see Pasinomie Belge, 1951, p. 663-7). Interestingly, Van Remoortel
presented a motion asking that a commission be formed to determine the legal
status of Leopold III's second marriage and that of his son Alexandre. The
motion was rejected on the grounds that this was not the Assembly's business
(since the joint meeting of both houses had for sole purpose to put an end
to the regency),
but could only be decided by the Houses in the exercise of their legislative
functions. This, of course, never happened.

Why this intentional silence on the part of the framers of the constitution?
Their motivation was most likely the desire to adhere to the theory of the irresponsibility
and inviolability of the king (article 88).
Placing such controls over the king's marriage meant that the king
could do wrong, undermining the theory of inviolability. That, at
least, is the opinion of the constitutional writer V. Boon.

The law makes the throne (more exactly, the constitutional powers of the
king) hereditary by primogeniture in the issue of Leopold I. The
issue must be direct, legitimate and natural, excluding collateral claims,
illegitimate births and adopted children. The descent had to be male
until the revision of 1991. The new clause "will be for the first
time applicable to the issue of" Albert II. This presumably means
that it will first be applied to decide the succession of Albert II: under
present circumstances (2005), Philippe is heir apparent, followed by his
children Elisabeth and Gabriel, followed by Astrid and
her children, followed by Laurent. Note that the transitory disposition
deems Astrid's marriage to have received the royal consent required by
article 85 (probably because, since she had no rights at the time of her
marriage in 1984, no such consent was sought or granted).

What if the issue of Albert II becomes extinct? Since the text
says "for the first time", it presumably means that undifferenced primogeniture
continues to apply to the rest of the descent of Leopold I. As of
1991, the only male-line descendants were king Baudoin I, Albert, Philippe
and Laurent; followed (possibly: see below) by Alexandre, son of Leopold
III's second marriage with Lilian Baels. After 1991, others became
eligible. After the issue of Albert, comes:

Albert's sister the grand-duchess of Luxemburg and her issue (with Marie-Astrid,
wife of Carl Christian of Austria, the eldest, and fourteen others),

the descendants of Leopold III's sister Marie-José (wife of Umberto
II of Italy),

the descendants of Leopold III's aunt who married a Hohenzollern-Sigmaringen,

the descendants in female line of Leopold II (including the Bonapartes).

However, one can presume that none of these marriages were entered into
with formal royal consent countersigned by a minister (since none was necessary
at the time). Thus, a constitutional revision similar to the one
bestowing retroactive consent on Astrid's marriage would be necessary to
make all these lines capable of succeeding. (Incidentally, by article
87 of the constitution, the king of Belgium cannot be head of another
State without the consent of both houses of the legislature).

The lack of royal consent to their marriages is what, in the end, excludes
all three children of Leopold III's second marriage (married in 1981, 1991
and 1998). But, until 1991, Alexandre was unmarried, and thus, in
principle, eligible to succeed.

The validity of Leopold III's second marriage

The validity of that marriage, and the status of its issue, is debated.

Actual status of the children of Lilian Baels

Some argue that the children of Leopold III and Lilian Baels have never
been treated as dynasts in Belgium. It is sometimes mentioned
that they were not
called to sit in the Belgian Senate by virtue of
article 72 of the Constitution. That does not appear to be a good
proof of their status as non-dynasts. Arguably, only the children of
then-prince Albert
were covered by the clause "the line called to succeed" in the absence of
any children of Baudoin. Also, while prince Albert sat in the Senate,
none of his children did while Baudoin was alive, even though Philippe
could have taken seat in 1978 and Laurent in 1981. Even now, Philippe
took his seat in 1994, Astrid in 1996, and Laurent will do so in 2000.
In earlier times, Leopold III's brother the count of Flanders never
took a seat in the Senate. Hence, Alexandre's absence in the Senate
is not a good proof of his status as non-dynast.

I do not know for sure what the styles of Lilian Baels and her
children are: Leopold III intended to make her princesse de Réthy,
but he appears never to have issued an arrêté royal to that
effect (see Stéphane Guiot's
page on Belgian royal titles). One can note, however, that the official
Belgian government web site calls her by that title. The royal decree
of 1991 reserves the style of prince of Belgium to the issue of the current
king: thus, the children of Leopold III's second marriage are not princes
and not entitled to the style of Royal Highness. But what was
or is their legal status?

Two arguments against the dynastic status of the children of Lilian Baels

Two arguments are made against the status of Lilian Baels' children as
dynasts. Both hinge on the validity of the marriage of Leopold III and
Lilian Baels. The first argument claims that the marriage did not
receive the consent required by article 85. The second argument claims
that the marriage was simply null and void.

The first argument is as follows:

article 85, paragraph 2 applies to the king as well as to princes;

any act of the king, including his own consent to his marriage,
must be countersigned;

Leopold III's marriage of 1941 was not
approved by any minister (since the lawful government was in London
at the time);

hence Leopold III
ran afoul of this provision and lost his rights to the throne.

article 85 does not explicitly exclude the issue of the
contravening marriage;

Leopold III did not cease to reign in 1941, which would have been
the case had he lost "his rights to the throne" upon marriage;

the recall of the king by the two houses on 20 July 1950
would in any case fulfill the third paragraph of article 85,
thus restoring Leopold III's rights and those of his issue (if
they were in doubt).

The second argument is as follows:

Leopold III's "marriage" to Liliane Baels was null and void in law,

thus, their children are illegitimate;

therefore, they are excluded from the succession to the Belgian
throne by article 85, paragraph 1 (restriction to
the legitimate descent of Leopold I).

Why was the marriage void? Because article
106 (current numbering) of the Constitution states: "no act of the
king can have any effect unless countersigned by a minister who, by that
alone, takes responsibility for that act". The king's signature on
his acte de mariage was not countersigned by a minister (since the
legal government was in London at the time), hence the act was void.
Without the act, no civil effects of the marriage can exist, in particular
the children are illegitimate.

Note the difference between the first and second argument: although both
rely on the absence of counter-signature of a minister, in the first argument
the counter-signature is missing on a royal consent to the marriage, in the
second argument it is missing on the marriage itself.

I proceed to rebuke the second argument as follows:

marriage is not an act of the king within the meaning of art. 106;

marriage does not require a signature;

the "acte de mariage" does not require a signature;

a void, defective, or missing "acte de mariage" does not invalidate a marriage;

the issue of a putative marriage without "acte de mariage" is still legitimate.

(1) Marriage is not an act of the king within the meaning of art.
106

It cannot be claimed that every single act of the king needs to
be countersigned (he can breathe, for example, on his own). Nor can
it be claimed that every signed document needs a countersignature: I am
sure his private correspondence is free of ministers' signatures.
Is it that every legal document signed by the king must bear a minister's
signature? That means a member of government must be present every
time the king writes a check, signs a credit card slip, makes a deed.
Such strictures on his private life (and waste of government's time) are
unthinkable.

So what defines an "act of the king" within the plain meaning of article
106? The article immediately preceding, article
105: "the king has no powers other than those formally bestowed on
him by the constitution of specific laws passed by virtue of the self-same
constitution."

What are those powers? Searching through the constitution, one finds that
the king:
summons and closes sessions of the legislative,
dissolves both houses, carries out the census and reapportionment, consents
to marriage of princes, restores dynastic rights of those who married without
consent, appoints and dismisses ministers, commissions officers of the
armed forces, appoints civil servants and diplomats, judges and prosecutors,
sanctions laws, issues regulations for their application, reduces or annuls
sentences, mint coins, confers titles and decorations, carries out foreign
policy, is commander in chief, declares state of war and peace, signs treaties.

An "act of the king" is just that: the king as king exercising his
constitutional powers. No legal action of the king described, required,
mandated, or allowed in the constitution can have any effect without countersignature.
Signing a check is not an act of the king; it is an act of the citizen
who happens to be king but is also a private individual (e.g., he owns property
in his name, is paid a civil list, spends it as he pleases).

Is marriage an "act of the king"? It has dynastic, therefore political
consequences. But is it described anywhere in the Constitution?
No (no more than signing checks). There can be only two conclusions:

the king cannot marry (or sign checks)

the king can marry (and sign checks), without countersignature.

The first is absurd, so the second follows.

But let's suppose that the marriage could be construed as falling under
article 106. Does the absence of countersignature make it void?

(2) Marriage does not require a signature

Marriage is a civil contract, described in Book I, Title V of the
Belgian Civil Code (arts. 144 to 227). Chapter I deals with the prerequisites,
chapter II with the formalities, chapter III with opposing claims, chapter
IV with annulments. Title II deals with acts of the Etat Civil,
and Chapter III describes the way a marriage takes place (arts. 63 to 76).
In particular, article 75 says: "on the appointed
day, the public officer in the townhall and before two witnesses receives
from each party successively the statement that they want to become husband
and wife, he declares, in the name of the law, that they are united in
marriage, and he draws up the act immediately".

It is the exchange of consent before witnesses and following the requisite
steps that makes the marriage contract. The "acte" which the officer
then writes out is a document that attests to the existence of the marriage,
but does not make it. The marriage is perfected once the public officer
has spoken, the act is nothing but evidence (see Répertoire pratique
du Droit Belge, s.v. mariage).
Invalidity of that document does not void the marriage.

(3) The act of marriage does not require a signature

Article 39, part of the general dispositions
on how acts of the etat civil are to be drawn up, says: "these acts shall
be signed by the public officer, by the parties and the witnesses, or mention
shall be made of the cause that prevents parties and witnesses from signing."

(4) A void, defective, or missing "acte de mariage" does not invalidate a marriage

How do we know that?

invalidity of the document is not a ground for annulment listed in chapter
IV. Therefore, the marriage of Leopold III and Liliane Baels cannot
be declared void on that basis.

the existence of the act is not essential to the marriage, because article
46 states: "If there were no registers, or if they have been lost,
proof will be given by documents and witnesses; and in those cases, marriages,
births and deaths shall be proven by the registers and documents coming
from deceased parents, and by witnesses."

But what of article 194, which says: "no
one can claim the status of spouse and the civil effects of marriage, if
he does not present an act inscribed on the register of the etat civil,"
except in cases described in article 46. To this one can oppose article 196 which means in substance that neither
spouse can have the act declared null when there is a recognized de facto
situation of marriage (possession d'état). The
interpretation of that clause (Répertoire pratique du droit
belge, vol. 7, p. 841) is that a de facto situation of marriage (where
the spouses have publicly lived as husband and wife and taken as such by
everyone) is sufficient to overcome any formal defect of the act of marriage,
such as being drawn on a loose sheet instead of on the official registers,
or the absence of the signature of the public officer. If the lack of
that signature (prescribed by law) can be compensated by the notoriety
of the marriage, so can the lack of any other signature.

(5) The issue of a putative marriage without act is still legitimate

And what of article
195 says: "A de facto situation of marriage cannot dispense the alleged
spouses who shall cite it to present the act of marriage to the public
officer"? Even if it is well known that the two are married, and
are considered as such and behave as such, they still must cite the original
act in order to claim the "civil effects" of their marriage. Do
such "civil effects" include the legitimacy of the issue?

Article 197 says: "If, however, in the cases
of articles 194 and 195, there are children born of the individuals who
have lived publicly as husband and wife, and who are both dead, the filiation
of the children cannot be contested under the sole pretext of a lack of
presentation of the act of marriage whenever that filiation is proven by
de facto recognition and is not contrary to the statements of the act of
birth."

So the issue can be legitimate even in the absence of an act of marriage.

Conclusion

The king's marriage is not an "act of the king" that falls under
article 106. Even if it were, a signature is not needed, either for
the marriage itself, or for the act of marriage, so no countersignature
is needed. Even if it were, the marriage is not void. Even
if it were without effect, the issue is legitimate.

V. Boon: Het Belgisch Staatsrecht.

The passage discusses article 60 of the 1831 constitution, now article
85 (with male restriction removed). The book says that the second
and third section of the article were added in 1893. It also says
that a different draft of the second section, whereby any prince born of
a marriage contracted without the assent of the legislative House was prevented
from succeeding to the throne (elke prins, die geboren wordt uit een huwelijk
dat aangegaan werd zonder te toestemming der wetgevende Kamers, van de
troon vervallen te verklaren). That draft was rejected after much
debate.